FL: ACLU Challenges Restrictions on Gender Affirming Care
“Floridians don’t need the government interfering in their personal lives.”
by Mira Lazine
The ACLU of Florida is working to advance a lawsuit that will challenge Florida Senate Bill 0254’s restrictions on state health insurance funding for gender affirming care. The bill prohibits state funds from being used for most types of gender affirming care in private health insurance.
On Friday, June 21, 2024, the ACLU began filing a supplemental brief - a type of legal document that expands upon previous information to affect how the court views the case - for a pre-existing lawsuit, Claire et al v. Florida Dep't of Mgmt Servs. et al. The brief will challenge this provision.
screenshot from SB 0254
ACLU of Florida staff attorney Carrie McNamara told Assigned Media, “Floridians don’t need the government interfering in their personal lives. There has been a systematic effort to make life more difficult for LGBTQ+ individuals, particularly trans and gender non-conforming individuals.”
“At the ACLU of Florida, we are committed to the broader struggle to protect trans lives. As Floridians navigate their daily lives under the state’s hostile legal landscape, we remain dedicated to defending their rights and ensuring they can live without fear and with dignity.”
The initial complaint focuses on plaintiffs Jami Claire and Kathryn Lane, who were denied coverage of gender affirming care under Florida’s state health insurance. The complaint claims that the denial of care constitutes a 14th Amendment and Title VII violation. It has been pending since January 2020.
The 14th Amendment requires all citizens be subject to equal coverage under the law. Title VII prohibits discrimination for protected characteristics, including sex.
Earlier this month, Florida’s sweeping gender affirming care ban, SB 0254, was blocked in the U.S. District Court decision on the case Doe v. Ladapo by Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida. The ban extended to all minors as well as some adults under a risk of felony charges.
Advocates for transgender care celebrated this ruling, with the Human Rights Campaign producing a celebratory set of statements from the legal firms involved with the case, which include GLAAD, the National Center for Lesbian Rights, Southern Legal Counsel, Human Rights Campaign, and Lowenstein Sandler LLP.
screenshot from HRC
However, while certain provisions pertaining to hormone treatments for minors and adults were taken down following the ruling, there are other provisions that remain that still will pose great risk to transgender individuals throughout the state.
One such provision is the restriction on state health insurance funding for gender affirming care, which was not challenged in that case. Simone Chriss, Director of Transgender Rights Initiative at the Southern Legal Counsel, told Assigned Media:
“We didn’t challenge the state funding provision, in this case just challenging the ban and restrictions on provisions of care, not the funding provision. We were able to strike down a piece of the funding provision in my other lawsuit that we had a trial only last year - Dekker v. Weida, where we challenged the Medicaid ban on gender affirming care in Florida. Part of that was for a section on state funding and specifically the provision banning medicaid funding.”
Dekker v. Weida, which had to do with Florida’s denial of gender affirming care to Medicaid patients, struck down the funding provision of SB 254 in its application to Medicaid. However, it did not strike down the application of this provision to private healthcare that receives state funding, such as that given to state employees.
Additionally, there are still restrictions on gender affirming surgeries for minors. These procedures, while extremely rare, are applied in cases where both parents and medical professionals agree it is necessary for the child’s ability to live a healthy life. Currently, SB 254 bans all gender affirming surgeries for minors.
There also is a light restriction on adult surgeries in that they have to get in-person consent forms, which can restrict patients who access preliminary appointments through telehealth. For patients with tight work schedules who struggle to schedule a surgery, accessing preliminary appointments through telehealth can be very important.
“The only one that is still in effect is the one for surgery. So a person just has to sign that form in person before they get surgery, but that’s the only restriction [for adults] that exists,” Chriss said.
Mandated in-person consent forms are currently required by SB 254, as Hinkle did not overturn this requirement, but instead restricted the medically inaccurate text that is on many of these forms. However, requiring in-person consent forms is typical for many states.
“The remaining requirement was what providers were already doing, which should be obtaining informed consent prior to prescribing medication anyway for gender affirming care,” Chriss said. “Informed consent is just part of the model for getting care at any time, and so it should return to providers for their own informed consent process, whether that’s verbal informed consent or what have you. It’s just kind of a return to the status quo of what they were doing.”
It also should be noted that Florida Governor Ron DeSantis (R) has stated his intent to appeal this ruling, and that he firmly believes that the Florida state government will win the appeal.
"We'll win that appeal, we may win it very quickly given that the 11th Circuit has already adjudicated this case going forward... we'll definitely win that case on appeal,” he said in a press conference last week.
Even though Hinkle’s order doesn’t fix all issues created by SB 0254, those involved in the case are nevertheless celebrating.
Chriss said, “It’s the first order in the country to address adult restrictions. I think it is positive and should send a message across the country for states to replicate what Florida did.”
Mira Lazine is a freelance journalist covering transgender issues, politics, and science. She can be found on Twitter, Mastodon, and BlueSky, @MiraLazine